Appellant Can't File Special Response-to-Amicus Brief Under Federal Rules of Appellate Procedure

Any response must go in the normal reply brief.

So the First Circuit reaffirmed today in an order in Doe v. MIT, No. 22-1056:

Per the federal rules of appellate procedure, a party's response to the argument of an amicus is contained within its reply brief. To the extent appellant seeks relief, such as an extension of time to file his reply brief or leave to file an oversized brief, that request is denied without prejudice to renewal with the specific relief requested.

The analysis might be different in state courts that allow amicus briefs to be filed after the reply brief; but in federal court, this makes sense.

(Disclosure: The amicus brief involved was my own; I filed a brief in support of neither party, shortly after the appellant's counsel filed their brief, and the appellant's counsel wanted to respond to the part of my brief—to be fair, a large part—that is contrary to their position. I plan to blog about the amicus brief itself soon.)

Comments

[rsteinmetz]

That seems to be obviously unfair and could conceivably lead to all sorts of gaming the system with coordinated Amicus Briefs essentially amounting to additional briefing for one side of the other.

[Eugene Volokh]

Parties have indeed objected to amicus briefs in the past, claiming that amicus briefs let a party skirt the word limits. That would be an odd claim to make in this case, because appellants had three amicus briefs of their own on their side; and beyond that, the rules do provide for amicus briefs, notwithstanding this effect.

But in any event, the court is simply saying that the remedy for that tendency of amicus briefs might be "an extension of time to file [appellant's] reply brief or leave to file an oversized brief" -- not the filing of a whole separate response-to-amicus brief.

[Dilan Esper]

The problem is, courts aren't always that liberal with motions for leave to file enlarged briefs.

The underlying issue is that while I am sure you really are a Friend of the Court, trying to assist it through your expertise, a lot of amici are not. They're just either repeating the arguments made in principal briefs or allowing parties to skirt page limits through coordinated briefing. I think Posner once spoke out about all this, but there really should be much stricter rules for filing these briefs.

[David Nieporent]

Eh. Seems to be less work for the court to just ignore the useless/redundant amicus brief rather than to undertake a screening process.

[Rossami]

So what should be the party's response in a situation like this? Request leave to withdraw their existing brief and file a presumably larger and later brief that addresses the issues brought up by the amicus? Wait until the very last minute just in case an amicus comes in and, in the process, risk missing the deadline for your own filing?

[Rev. Arthur L. Kirkland]

" Wait until the very last minute just in case an amicus comes in "

Wouldn't a courteous, professional advocate alert the relevant lawyer(s) to the prospect of the amicus brief?

It has been a number of years since I filed or received amicus briefs with any regularity, but that was the practice I recall.

(On the other hand, I watched opposing counsel during oral argument a few years ago -- after the judge had repeated a ruling for the second or maybe third time and encouraged the lawyer to move to another point with 'you don't seem to understand, counsel . . . I have ruled, and I would like to hear your next point' -- point his finger at the judge and declare 'no, your honor, you don't understand, if you get this issue wrong now it is going to cause huge problems down the road in this case, so we need to spend as much time as it takes to get it right.' That exchange had a predictable consequence for that lawyer's client.

So maybe times have changed.)

[Eugene Volokh]

Here's the general timing under the Federal Rules of Appellate Procedure, with T1 indicating the due date for appellant's brief:

T1: Appellant's brief due.
T1+7: Amicus briefs supporting appellant, as well as ones supporting neither party, due.
T1+30: Appellee's brief due.
T1+37: Amicus brief supporting appellee due.
T1+51: Reply brief due.

The appellant thus has 14 days to work in responses to appellee's amici, and 44 days to work in responses to amici supporting neither party, even without asking for an extension; and, generally speaking, extensions are fairly liberally granted.

[Noscitur a sociis]

After reading your brief I was certainly left with the impression that you think the plaintiff should lose. Am I reading too much into it?

And congrats to your son!

[Eugene Volokh]

Thanks! I think this is a genuinely difficult question; but the brief spends much more time on the pro-public-access side than on the pro-pseudonymity side because (1) my space was limited, (2) the pro-pseudonymity side was already comprehensively covered in the appellant's brief and the appellant-side amicus briefs, and (3) I'm not sure MIT will take the pro-public-access position, so it might be that my brief will be the only brief that expresses that side of the question.

[tkamenick]

In Wisconsin, the only time I've seen an appellate court grant permission to respond to an amicus brief is a very rare occasion where an amicus brief raises another grounds of deciding the case that the court is actually interested in considering.

Practically, it's impossible to respond to an amicus brief in a reply brief. Court of Appeals reply briefs are due 15 days after the response briefs. Amicus MOTIONS are due 14 days after the response brief, with the amicus brief itself due whenever the court sets the deadline (typically 1 or 2 weeks out), although it's much more common to file the brief concurrently with the motion.

In the Supreme Court it's even worse. Standard briefing orders provide 30/20/10 days for briefs, so amicus motions (with or without briefs) are actually due 4 days after the reply brief has to be filed.